Our friends at the Journal of International Criminal Justice have let us know that their first issue of this year – the Journal’s tenth anniversary, sadly in the absence of Nino Cassese – is now out. The special issue is dedicated to aggression after Kampala, and was edited by Claus Kress and Philippa Webb. All of the articles are available on the Oxford Journals website.
Today marks the beginning of the 19th session of the Human Rights Council, scheduled to run from February 27 to March 23, 2012. This session will also mark the official end of the first cycle of the Universal Periodic Review mechanism, which has seen all 193 member states of the UN undergo a review of their human rights record, creating a baseline for future reviews. The unofficial end of “UPR” (as it is known) happened in October 2011, but with the adoption of the last remaining reports at the 19th session, the international community is officially at a point where we can look back on the first run-through of this new mechanism and discuss changes for the second.
Universal periodic review was one of the proposals made in the lead-up to the World Summit of 2005, with the outcome of the World Summit confirming the creation of a standing Human Rights Council out of the ashes of the old part-time Commission on Human Rights (A/RES/60/1). The idea of the Council serving as a “chamber of peer review” to evaluate the fulfilment by all states of all their human rights obligations was a proposal backed by then UN Secretary-General Kofi Annan. Annan expanded on the idea in an explanatory note published in May 2005 (A/59/2005/Add.1) as an addendum to his “In Larger Freedom” report of March 2005 (A/59/2005). These reports helped focus the discussions taking place between states as they prepared for the World Summit of September 2005, although it was not until March 2006 when the UN General Assembly adopted a resolution specifically on the “Human Rights Council” (as the resolution is entitled), which confirmed that the Council would undertake a universal periodic review (as the mechanism had become known) (A/RES/60/251).
In a post here a couple of weeks ago Jens Iverson argues that “Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.” He argues that although Article 98(1) of the ICC Statute instructs the Court not to proceed with “a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”, this provision does not apply to Head of State immunity. In his view, this is so because head of state immunity is not the same thing as either state immunity or diplomatic immunity. Jens’ basic point is that Art. 98 only covers the immunity of the State (and diplomatic immunity) and that the immunity of heads of States is something different from this. It is true that there are particular rules that apply to the immunity of the head of State and it is also correct that the scope of the immunity of the head of State (and indeed of other State officials) is different from the scope of the immunity of the State itself. However, it is incorrect to say that head of State is not an aspect of State immunity. In my view, it is also incorrect to suggest that the reference to State immunity in Article 98(1) does not include the immunity of the head of State or other state officials.
The immunity of the head of State (or other State officials) is granted not for the personal benefit of the head of State but is for the benefit of the State. This is why that immunity can be waived by the State. The immunity is one which belongs to the State, it is the right of the State, which is why the State is entitled to insist on compliance with the international law rules. When a State insists, in a diplomatic claim or in judicial proceedings before an international tribunal, that there has been a violation of the immunity of the head of State (or other State official), the State does not have to exhaust domestic remedies. This is because the State is seeking to enforce its own rights. This is because the State is seeking to enforce its own rights. No one suggested that the DR Congo should have first brought proceedings in Belgium before initiating the Arrest Warrant Case dealing with the immunity of its Foreign Minister. This is because the State was seeking to enforce its own rights. The immunity belongs to the State.
As Sangeeta Shah and I explain in an EJIL article, part of the reason for international law granting immunity to State officials from the jurisdiction of other States is because the State is a corporate body which must act through natural persons. To grant immunity to the State without providing for some immunity to State officials would completely defeat the immunity of the State itself. So, State immunity includes the immunity of its officials for acts performed in the course of their functions. This is immunity ratione materiae. Head of State immunity is immunity ratione personae but this variant of immunity is also conferred for the benefit of the State rather than that of the individual. In the Arrest Warrant Case, the ICJ stated with respect to the immunity ratione personae of the Foreign Minister:
“In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.” (para. 53)
The same is true of the head of State. His or her immunity is also for the benefit of the State and is in that sense merely a part of the immunity of the State. When Art. 98(1) refers to the obligations of a State with regard to State immunity of a person it must be taken as referring to all those immunities which to individuals as a result of their connection with a State. Thus it not only includes the immunity of all State officials ratione materiae (to the extent that they apply), consular immunity, immunity of special missions and all those immunities which apply ratione persone, including the immunity of the head of State.
If Jens position – that head of State immunity is not part of State immunity – were correct, then we would be in the anomalous position that other State officials with immunity ratione personae could benefit from Article 98 but the Head of State could not. This would be a manifestly absurd result. Though of course if one takes the view of the ICC Pre-Trial Chamber in the Bashir Case (see comment here) no one benefits from Art. 98 and the drafters wasted their time in including it in the Statute. Another manifestly absurd position.
Yet another mala figura: Italy breached non-refoulement obligations by intercepting migrants’ boats at sea, says ECtHR
Francesco Messineo is lecturer at Kent Law School, Canterbury.
For a country so obsessed with the bella figura (loosely translated as ‘making a good impression’), these are not good days for Italy – at least as far as international law is concerned. Only a few weeks after having been told by the International Court of Justice that its Court of Cassation had misapplied rules on state immunity against Germany, the government found itself in the position of having to rely on those same rules against India in an intricate case involving Italian soldiers allegedly killing unarmed fishermen off the coast of Kerala. On this occasion, the Italian Minister of Justice made some spurious assertions as to the lack of Indian jurisdiction over the killing of its own citizens which have been legally untenable at least since one day in September 1927 (ignore Lotus at your peril…).
But there is more. Yesterday, the Grand Chamber of the European Court of Human Rights strongly and unequivocally condemned the Italian policy of intercepting migrants’ boats in the Mediterranean sea and returning their unidentified passengers to Libya (Hirsi Jamaa and others v. Italy, 23 February 2012, available here; Hirsi hereinafter). And rightly so – the policy was such a flagrant breach of Italian and European obligations concerning international protection from refoulement that most observers and protection institutions had already unanimously expressed concern. To name but a few, the United Nations High Commissioner for Refugees, the Council of Europe’s Committee for the Prevention of Torture, the European Commission, Amnesty International, and Human Rights Watch had all previously said that such ‘push-back’ operations in the high seas were illegal both under international refugee law and under international human rights law (Hirsi, -).
The Hirsi case arose in the context of the 2007 bilateral anti-immigration cooperation agreement between Libya and Italy which was fully implemented in early 2009. When the policy of interception and rejection at sea was put into effect, it ostensibly achieved some of its stated aims. The Lampedusa ‘reception centre’ was suddenly nearly empty – a very different image compared to previous years (and subsequent events of 2011). In 2009 alone, more than 800 Somali, Eritrean and Nigerian citizens were returned to Libya before even touching Italian soil. They were returned to Tripoli without regard for the fact that, as unwanted migrants in Lybia, many of them faced a real risk of torture, physical violence, rape, indefinite detention in overcrowded and unhygienic conditions, as well as further expulsion towards their countries of origins. (Hirsi, -).
The applicants in Hirsi were 11 Somali and 13 Eritrean citizens belonging to a group of about two hundred migrants intercepted on 6 May 2009 about 35 nautical miles south of Lampedusa by the Revenue Police (Guardia di Finanza) and swiftly transferred to Tripoli on Italian military ships. None of them was identified by Italian authorities before being handed over to Libyan authorities. When ordered to board the Italian military ships, the migrants were told that they were being transferred to Italy. Two of them died in unknown circumstances after their arrival in Libya. Some of the others were granted refugee status by UNHCR in Tripoli. One of them was granted refugee status in Italy after making a second successful attempt at crossing the Mediterranean sea. It seems undisputed that they were genuinely in need of international protection.
There are three crucial reasons why Hirsi is a fundamental decision. The first is that it clarified that the Court’s Soering jurisprudence on non-refoulement under Article 3 ECHR also applies in the high seas. This is bound to have important consequences not only for the debates over the interpretation of the term ‘jurisdiction’ in Article 1 ECHR, but also, arguably, for the analogous long-standing debate over the applicability of non-refoulement obligations arising from the Geneva Convention on Refugees in the high seas. Secondly, it is only the second time (after Čonka v. Belgium, no. 51564/99, 2002) that the Court finds a State to have breached Article 4 of Protocol 4 ECHR, which prohibits the ‘collective expulsion of aliens’. In order to reach such a conclusion, the Court had to interpret the term ‘expulsion’ somewhat counter-textually. Thirdly, Hirsi stands as a landmark judicial reaffirmation of the long-standing jurisprudence of the Court on the protection of migrants from the risk of torture and inhuman treatment, and must be read in the context of European migration policy. I will very briefly address these three questions in turn.
After the capture of Saif Gaddafi (who is wanted by the International Criminal Court) in November last year, Libya’s National Transitional Council stated that it would seek to prosecute Saif in Libya and that the NTC did not intend to turn him over to the ICC (see document filed by ICC Prosecutor). This prompted discussion here and elsewhere as to whether Libya was under an obligation to surrender Saif Gaddafi to the ICC pending the determination of where he would be tried. Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here and here) had a discussion about the relevant provisions of the ICC Statute and whether those provisions permit a State to suspend its obligation to surrender an accused person, pending the determination of an admissibility challenge by the ICC. Kevin thought the answer was yes, David and I thought it was no. Well, nearly two months on, Libya has not only failed to surrender Saif but it has not made an admissibility challenge either! It did write a letter to the ICC on 23 November stating that:
“The National Transitional Council wishes to affirm that, in accordance with the Rome Statute, the Libyan judiciary has primary jurisdiction to try Saif al‐Islam Gaddafi and that the Libyan State is willing and able to try him in accordance with Libyan law”
However, no specific reference was made in that letter to the provisions of the Statute dealing with complementarity or admissibility, nor was there an explicit statement that the case should be regarded by the ICC as inadmissible.
Since November, there have been some proceedings at the ICC where the Pre-Trial Chamber has sought Libya’s views on the matter. For reasons which are entirely unclear to me, Libya’s submission to the PTC, made on the 23rd of January, were made on a confidential basis and all that is public is a report by the ICC Registry indicating that the observations were made. If anyone knows why the observations are confidential, I would be delighted to know. The Prosecutor’s response, which was due on the 2nd of February is also absent from the ICC website. The NTC letter of 23 November, though it is the most innocuous letter, and contains nothing at all that is remotely sensitive, was also originally classified as confidential. There, is on the website, a response to Libya’s observations filed by the ICC’s Office of Public Counsel for Defence (OPCD) but parts of that document are redacted. It all seems rather mysterious to me. In any case, the OPCD response gives some indication of the arguments relied on by Libya. It appears that Libya is relying solely on Article 94 of the ICC Statute as justification for its failure to hand over Saif Gaddafi (see para. 36, OPCD submission and NTC letter of 23 Nov). In the previous discussion here (and here), at Opinio Juris, and at LieberCode of whether the obligation to surrender is suspended where there is an admissibility challenge, we focussed on Article 19, 89(2) and 95 – all of which deal with the effect of admissibility challenges. We did not discuss Article 94. As I discuss below, I think Libya’s reliance on Art. 94 is misguided. Given that it has a much stronger claim under Art. 95, it is not clear to me why they are relying on Art. 94. Art. 94(1) provides that:
Professor Andrea Bianchi is Professor of International Law at the Graduate Institute of International and Development Studies
‘If you do know that ‘here is the Court’, we’ll grant you all the rest’
(Liberally adapted from the incipit of L. Wittgenstein’s, On Certainty, Blackwell, 1975: ‘If you do know that here is one hand, we’ll grant you all the rest’).
At last we have certainty. After almost twenty years of heated debate on how to reconcile the law of state immunity with human rights, we now know. State cannot be sued for serious human rights violations before the municipal courts of another state. The International Court of Justice by its holding in the Jurisdictional Immunities of the State (Germany v Italy) case provided us with a two-fold certainty. It told us what the law is on a controversial point and, at the same time, it reassured us, as international lawyers, that the Court is always there to tell us what the law is. As long as we know this, all the rest can be set aside.
Comments are being posted in blogs, like this one, and comments will later appear in highly reputed international journals. As Jennings once put it, the judgment will be regarded ‘as if it were a sort of holy writ’. Every single line of it will be scrutinized and ‘gobbets’ of it will be relied upon, often regardless of context and facts, as if they were incontestable truths. It is to be expected that those sentences dealing with ‘custom’ and/or ‘customary law’ will become particularly popular. International law textbooks and manuals will be revised and their next edition will include the ‘last’ chapter of this long saga. Invariably, the last paragraph of any such chapter will be ‘The ICJ conclusively held….’. The die is cast.
I was among the first to ignite this debate long ago (see, for example my EJIL article here) and for the last seven years I have deliberately abstained, despite numerous solicitations, from making further comments on the matter. I said what I had to say and I do not like restating what I have already said (admittedly, not a smart choice in my profession). In so doing, I have tried as much as possible to be faithful to Mr Hare’s teaching to his son Thumper, the small rabbit in Walt Disney’s Bambi: ‘If you don’t have something to say it’s better to keep quiet and say nothing at all’. If I now derogate from this sound practice, it is because I thought that the ICJ judgment as such (not the nooks and crannies of the Court’s reasoning) might be worth of comment.
Overall, I do not think that there has been much new. The Court rehearsed well-known arguments on both sides. Presumably, some things could have been argued more effectively (Italy seems to have conceded far too many points on the law of immunity); a different pleading strategy could have been adopted (why not arguing, even in a subsidiary way, that the lifting of immunity was a countermeasure?); some pre-emptive strikes might have been hit (why not countering more effectively in the pleadings the jus cogens / substance vs. immunity / procedure distinction?), but all in all there was nothing substantially new.
Be that as it may, all this discussion is trivial, as the Court did want to say what it said (it had an easy way out, had it not wanted to pronounce itself on the issue of immunity, by upholding the claim that Italy had waived its claims by agreement) and could not reach a different outcome. No serious bookmaker would have taken bets on the decision of the ICJ. If one had asked one hundred international lawyers what they expected the ICJ to say, ninety-seven of them (3% accounts for statistical uncertainty or random fluctuations) would have predicted the outcome. Everyone was certain of this and that should not come as a surprise.
How did we acquire such an absolute certainty? What was it that made us all convinced that no serious alternative existed to the Court coming up in favour of Germany? Read the rest of this entry…
Chimène I. Keitner is Associate Professor of Law, University of California Hastings College of the Law, and Co-Chair of the ASIL International Law in Domestic Courts Interest Group. In 2010, she represented amici Professors of Public International Law and Comparative Law in the U.S. Supreme Court case Samantar v. Yousuf.
U.S. lawyers are poring over the ICJ’s decision in Germany v. Italy to see what impact, if any, it might on legal proceedings in U.S. courts. My assessment is, “not much.” The immunity of foreign states is governed by the Foreign Sovereign Immunities Act (FSIA), which generally codifies the restrictive theory of immunity, except for provisions allowing certain types of suits against designated state sponsors of terrorism (the current list includes Cuba, Iran, Sudan, and Syria). The ICJ’s reasoning lends some support to the view that permitting suits against foreign states for their non-commercial acts absent an express waiver violates customary international law, but the court was careful to limit its holding to suits for conduct performed by one state’s armed forces during armed conflict on the territory of the forum state (¶ 78). In any event, within the U.S. legal system, Congress’s intent to hold state sponsors of terrorism liable will govern.
The ICJ’s acceptance of war crimes as acta jure imperii for the purpose of state immunity is consistent with current U.S. practice, as reflected in the Supreme Court’s decision in Saudi Arabia v. Nelson. Similarly, the United States has not yet recognized a jus cogens exception to state immunity, as reflected for example in the D.C. Circuit Court of Appeal’s decision in Princz v. Federal Republic of Germany, and in the absence of a statutory jus cogens exception in the FSIA.
Because both Germany and Italy agreed that state immunity is a matter of customary international law (¶ 53), the ICJ did not dwell on the possibility that state immunity might instead be a matter of comity. The distinction between customary international law and comity remains important as a matter of U.S. interpretation and application of state immunity, however, because—contrary to the language in Germany’s memorial (¶ 66 & n.91)—the United States as a general matter does not set out to disregard international law in most circumstances.
As for the immunity of current and former foreign officials, U.S. courts are still grappling with how to identify and define the applicable standards following the Supreme Court’s 2010 decision in Samantar v. Yousuf, which held that the FSIA does not govern such immunity where the foreign state is not the “real party in interest.” The ICJ has said that its decision in Germany v. Italy does not speak to whether, and to what extent, immunity might apply “in criminal proceedings against an official of the State” (¶ 91); nor, presumably, does it speak to civil proceedings in which the state is not the real party in interest. Read the rest of this entry…
The International Court of Justice (ICJ) has announced that it is seeking to appoint 2 Law Clerks for to provide research and other legal assistance to its judges. As I understand it, each judge at the ICJ now has his or her own clerk (a position that is relatively new within the Court). These positions are in addition to the year long interns which are paid for by law schools around the world under the Court’s univerity traineeship programme. My own law school at Oxford joined the latter programme a couple of years ago and we provide one intern to the Court.
The announcement on the ICJ’s website regarding the newly advertised positions says that:
Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.
The new positions are at P2 level (within the UN Grading system) and will be made for a fixed term of 2 years with the possibility of renewal.
Head of State Immunity is not the same as State Immunity: A Response to the African Union’s Position on Article 98 of the ICC Statute
Jens Iverson is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, University of Leiden, the Netherlands.
On 9 January 2012, the African Union (AU) Commission issued a press release responding to the decisions (see here and here) issued by Pre-Trial Chamber I of the International Criminal Court (ICC) last December regarding the “alleged” failure by Chad and Malawi to comply with the cooperation requests with respect to the arrest and surrender of President Al Bashir of Sudan (For previous EJIL:Talk! Commentary on the ICC decisions and the AU response see here and here). In the press release, the AU makes the assertion that the decision has the effect, inter alia, of:
“Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless.”
There has been much discussion (including by Dapo Akande on this blog and elsewhere) regarding the meaning and effect of Article 98 of the Rome Statute. Paragraph 1 of that provision states that:
“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”
Unfortunately, the following points are often not emphasised in discussions or rulings on Article 98(1) and are entirely overlooked by the AU Commission:
i. Article 98(1) only covers “State or diplomatic immunity of a person or property of a third State”;
ii. Head of state immunity is not the same thing as either a) state immunity or b) diplomatic immunity; and
iii. Head of state immunity is the relevant immunity in this case.
Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute. As is well known, Article 27(2) clearly and unambiguously states that immunities which may attach to the official capacity of a person do not bar the Court from exercising jurisdiction over such a person. Particularly in light of Article 27(2) and the obvious importance of the question of head of state immunity, if the framers of the Rome Statute intended Article 98(1) to apply to heads of state, one might have expected that explicit language to that effect would have been negotiated at the Rome Conference. It was not. Rather, as this analysis will briefly elaborate, it appears that Article 98 was crafted not to interfere with States qua States and with the efficient performance of the functions of diplomatic missions, while retaining the capacity to hold heads of state to account.
A week ago, the Bureau for Investigative Journalism (BIJ), in conjunction with the Sunday Times (of London) published a report into US drone tactics in Pakistan. The report states that since Barak Obama came into office US drone strikes in Pakistan killed between 282 and 535 civilians. The core of the recent report was that some of these civilians were killed in follow-up strikes which delibaretely targeted those who had gone to help victims of previous strikes or were killed in deliberate strikes on funerals and mourners. In a separate piece, “A Question of Legality“, the BIJ examines whether this US tactis is lawful under international humanitarian law (and international human rights law). In that piece I am quoted as follows:
Professor Dapo Akande, who heads Oxford University’s Institute for Ethics, Law and Armed Conflict, believes that under LOAC the killing of civilian rescuers is problematic: ‘The question is, can rescuing be regarded as taking part in hostilities, to which for me the answer is clearly “No”. That rescuing is not taking part in hostilities.’
The BIJ piece (and my quote) has generated a keen debate on other international law blogs as to legality of the (alleged) US tactic of attacking rescuers and funeral goers. Bobby Chesney, at Lawfare agrees with what I say on direct participation in hostilities but argues that this only matters “if we assume that a person must be directly participating in hostilities in order to be targeted lawfully in that context.”. He explains that if one agrees with the position taken by the ICRC in its Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, then a member of an organized armed group who has a continuous combat function is not a civilian and can be targeted at any time (i.e on the basis of his status alone), subject to questions of proportionality. That person does not need to be taking a direct part in hostilities to have no immunity from attack.
I agree with Bobby Chesney’s assessment. He is right that the first question is whether the people who have been targeted are civilians. It is only if the answer to that question is in the affirmative that one gets to the question of direct participation in hostilities. I did make this point to the BIJ in my interview with them but I think the quote they chose to go with was one which they felt made the point about the illegality of killing civilian rescuers most strongly. I have gone over the transcript of my interview with BIJ and this is what I said on this point:
On the one hand, if we’re talking about people who are known to be militants (and this is the big question, whether they are and how the US knows and all of that) then you can say, well, these people under LOAC can be targeted just because they are militants. That would be fine. On the other hand, it can be argued that the law says that if you’re a civilian and you take a direct part in hostilities, then you can also be targeted. So you’re not a militant, you’re just a local, but you take a direct part.
So then the question is, can rescuing be regarded as taking part in hostilities, to which to me the answer is clearly ‘No.’ That rescuing is not taking a direct part in hostilities. And so if a person is not a militant, the fact that they are coming to recue and help, that’s not taking a direct part in hostilities.
The first para above was intended to make, in simple terms, the point that members of organized armed groups can be the object of an attack (even in a funeral or a rescue situation) on the basis of that status alone. However, that would only be stage one of the analysis as all that would have been satisfied is the principle of distinction (which requires those conducting attacks to distinguish between civilians and combatants). If the attack causes civilian casualities or damage to civilian objects, one would then proceed to analyse whether the principle of proportionality is satisfied.
Kevin Jon Heller in a post on Opinio Juris takes a different view and has argued that the principle of distinction does not permit the U.S. to intentionally attack one member of an organized armed group who is attending a funeral along with a number of civilians. In his view such an attack is a clear violation of the principle which states that the civilian population as such shall not be the object of attack (Art. 51(2) Additional Protocol I, 1977). Kevin notes Article 50(3) of API which states that the “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”
I disagree with Kevin that an attack which has as its object the killing of a member of an organised armed group (lets call him “combatant” for short) fails to respect the principle of distinction because the combatant is in the company of civilians. The attack may well be unlawful because of disproportionate civilian casualties or loss but that is a different point. Read the rest of this entry…